Wisdom for the Bar Exam

Monthly Archives: February 2012

Okay all, this is likely the last post for the night (unless I think of something else).

Here is a quick murder approach – I am providing this because if you do end up with a Criminal Law(murder) cross over with Criminal Procedure (which certainly could happen), then you will need to make your way through your murder approach fairly quickly.

Here is quick shorthand approach for handling a murder question:

Address: Common Law Murder is the unlawful killing of a human being with malice aforethought. Malice aforethought is proven four ways: 1) intent to kill, 2) intend to inflict great bodily injury, 3) depraved heart killings, and 4) felony murder.

(Address the above and then if you have a felony murder issue, prove up the underlying felony (BARRKS – Burglary, Arson, Robbery, Rape, Kidnapping or Sodomy – incidentally, I am not expecting the examiners to test one of the above common law inherently dangerous felonies, instead, IF they ware to test felony murder I would expect to see it in the context of a dangerous felony like drug trafficking or something like that – it forces you to reach a bit and explain that the prosecutor could charge the defendant for felony murder on the basis that it was an inherently dangerous felony, but not a c/l enumerated (BARRKS) felony)

Then move onto:

Statutory Degrees of Murder

First Degree Murder: First degree murder is the intentional killing with malice aforethought, premeditation and deliberation. (here do not spend all day on defining or explaining premeditation or deliberation – it either was premeditated and deliberate (lying in wait, planned, thought out etc.) or it wasn’t – address the issue and conclude and move on).

Second Degree Murder (here is the quick way: “all murders that are not first degree are second degree unless mitigated down to some form of manslaughter”).

Manslaughter

There are two types of manslaughter (Voluntary and Involuntary). If you know right away that the facts support a heat of passion killing, then address that first under Manslaughter as: Voluntary Manslaughter. (By the way, anytime there is a fight that results in a death – you should address heat of passion/voluntary manslaughter.

Voluntary Manslaughter: is a killing that would be murder but for the existence of adequate provocation and insufficient cooling time. (there are elements here that you could develop, but, the reality is that if you have a cross over exam and it involves a full murder discussion – from common law murder to manslaughter, then you simply do not have a lot of time. So spend your time focusing on whether what happened would arouse the passions of reasonable person to kill AND whether or not the person did not have time to cool).

Involuntary Manslaughter: A killing is involuntary manslaughter if it was committed with criminal negligence or during the commission of an unlawful act.

There is also the concept of Misdemeanor Manslaughter Rule – it is simply an accidental killing that occurs while engaged in a non-dangerous felony or misdemeanor.

Obviously there are defenses like: Intoxication, Insanity (know the four tests as best you can), self defense, defense of others etc. that can all word to either relieve the defendant of liability for common law murder and reduce the crime down to some form of manslaughter. Keep in mind the above is a basic approach. But, sometimes that is really the best thing to have in your head on the day of the exam. You should have a framework or basic approach and then allow yourself the freedom to write your answer based on the particular fact pattern you face.

I will also post a quick version of our murder approach. But, if you want to see a quick video (4 minutes and 38 seconds) on how to approach a murder exam, go here: Bar None Review Home Pageand scroll down about a third of the way down the page and you will see a video on murder (this is an excerpt from a review session involving a murder hypothetical – it covers a basic approach)

Thank you for being one of the over 11 thousand who have viewed this blog in the past week. I am incredibly humbled and grateful. NOTE: Still answering last minute questions for free at: pass@barnonereview.com

First of all, my apologies for the formatting on my preceding post (I tried to add spacing between paragraphs, but, for some reason my blog program would not cooperate today).

Second, I think it would be worthwhile to give some thought to what might be tested if anyone one of the topics tested on July 2011 are repeated (as topics generally are repeated from one bar round to the next – see my prior post). So, to that end, I am writing now to simply cover what the examiners might do in repeating prior topics from the July 2011 exam. First of all – my top picks for repeating from July 2011 are Criminal Law (but this time murder – see my earlier post from last Sunday) and likely crossed with Criminal Procedure. My second pick would be Civil Procedure – for some reason it seems every bar review company is predicting this one. If it comes up I would expect it to involve jurisdiction (subject matter and/or personal jurisdiction as the main components and then perhaps a minor joinder or venue or remand issue).

If you were to be tested on Contracts (not saying that I expect it), but, if it were to repeat from July 2011 on this exam – then I would lean towards either a UCC formation or Remedies Exam (incidentally, specific performance has not been tested incredibly recently). The July bar exam tested a common law formation exam and so I would not be leaning towards seeing an exact repeat of that area, but, review it anyway because if you have a UCC Formation exam, then you will still need to address the common law in your discussion of formation – also, remember that the examiners like to see distinctions made between the UCC and the Common Law when they are testing the UCC). Still, Contracts is not my first pic for a repeat.

If you were tested on Professional Responsibility again, and statistically this is pretty likely (although, read below my comments on the fact that PTA tested PR pretty heavily and that Trusts from day one also had a coverage of duties) if it is tested, I believe it will be in one of the scenarios I listed previously (see prior post and link in that post to my earlier predictions). Also, I think it would be mighty tricky/sneaky of the bar examiners to test some of the advertising areas (since that involves commercial speech and they have been known to even test a topic from day one’s essays on day three’s essays). Still, I think it is more likely that you would see conflict of interest issues, perhaps in the dating or sexual relationship area in Professional Responsibility (the examiners like this area – as in it is tested pretty often – and it has not been tested real recently).

Real Property (this one was tested back to back on the July 2011 and February 2011 bar exam). As a result, most people would write it off. I would NOT write it off. Do I think it will show up as a full essay? No. But, it certainly could repeat (yes, three times in a row) as a cross-over with another topics. Topics that were most recently tested (July 2011: Joint Tenancy, Tenancy in Common, Fee Simple Subject to Condition Subsequent, Restraint on Alienation, Ouster by Adverse Possession. February 2011: Landlord Tenant Context – but, not your typical LL/T – it included coverage of easement, equitable servitudes, covenants). So, what could be tested if RP was tested again? Perhaps a deed issue or mortgage issue or land sale contract issue – still it is not my first pick for what could repeat and if it were to repeat, I am leaning more towards a crossover here).

Criminal Law/Procedure – the bar examiners list these topics together and so on the July 2011 bar exam, while only Criminal Law was tested, it was listed as Criminal Law and Procedure. I have already indicated in my prior posts what I think about this topic and the likelihood of it showing up. Please refer to my preceding post and the links there to my initial February 2012 Bar Exam Predictions/Essay Scenarios.

Okay, that is really it for now. Please review the prior posts from the past few days and be sure to review my initial February 2012 Predictions as well (there is a link to these predictions at the end of this post under “Related Articles”. Above all, review what you feel you need to review (what you would be least comfortable having to face tomorrow morning). Stay positive, you are 2/3 of the way done! Congratulations!

I think you should review my first set of “predictions” before reading this post.

First, here are some fairly consistnet constants with the bar exam (the caveat being that the bar examiners can always test anything they want and in any fashion as many times in a row as they wish):

1) Usually the bar examiners repeat at least two subjects from the preceding bar round (so far, day one’s essays did not include a repeat of any topic from the July 2011 bar exam). And, just so you know, here are the topics that were tested on the July 2011 bar exam: Criminal Law (but, not murder), Civil Procedure (but not jurisdiction), Contracts (Common Law, no remedies, no UCC), Professional Responsibility, Real Property (JT, TC, restraint on alienation, adverse possession), and Community Property. So, if the bar examiners do what they usually do, something is going to repeat. Really any are fair game, given that day one has not repeated anything from the July 2011 bar exam. And, just so you know, the July 2011 bar exam repeated the following subjects from the February 2011 bar exam: Property and Professional Responsibility. And, the subjects that repeated on the February 2011 bar exam that were tested on the July 2010 bar exam were: Torts, Professional Responsibility, Evidence and Business Organizations (yep, FOUR subjects repeated from the July 2010 bar round to the February 2011 bar round). I mention all of this because I want to make certain that those of you who think something will not be on this bar exam simply because it was tested on the last bar exam will realize that this is wrong.

2) Usually (usually) there are three MBE topics tested. But, this does not always happen. However, there has only been one bar round in the past four years that has NOT included at least three MBE topics. This was the February 2008 bar exam – on that administration the bar examiners tested to MBE topics on day one (Torts and Criminal Law/Procedure – so I suppose the cross over of Criminal Law and Procedure could be viewed as two MBE topics, but, still it was light on MBE topics for that bar round) and then day three had essays that were all non-mbe topics (corporations, wills/trusts and I believe community property – I need to confirm that last topic to be sure). So, I would think that just based on history – statistically – you should see one more MBE topic – I think either Criminal Law/Criminal Procedure (specifically murder and procedural issues) or perhaps Torts (products liability) – the thing is that we are looking for something to repeat from the past bar exam and of those two MBE topics, Criminal Law was on the prior bar exam (but did not test murder – they tested mostly crimes of possession, assault, battery and accomplice liability). Murder has not been tested since February of 2008, so it is due.

3) Statistically, Professional Responsibility shows up on nearly every essay portion of the bar exam – it has only been left off of the essay exam twice since 1994. However, on a few recent bar rounds it has only been tested as a cross over (especially when there is heavy coverage of Professional Responsibility on the PT and coverage of any other duty relationships like in trusts – the duty of the trustee for example). So this could be a bar round where they either skip Professional Responsibility altogether from the essays or they may have it only as a cross-over. Still, keep in mind that statistically it usually shows up as a full essay – so be prepared for it. Definitely be prepared for it. And, since there has not been a heavy emphasis on California law (there does not have to be any emphasis on California law, by the way) Professional Responsibility would make for a nice topic to be able to include some California specific issues.

4) It would not be unusual to see a repeat of one of day one’s essay topics as part of a cross-over on day three. I know that sounds horrible, but, if it happens it won’t be horrible (especially if you know that it could happen). For example, they could have a community property exam and add one evidence call that deals with marital and spousal privilege. Just a thought (not designed to freak you out). It has happened in the past and people seem to get really bothered by it, but, there really isn’t any reason to let it bother you. If they do repeat anything from day one’s essays, it will be a minor, one short call kind of issue. And, the examiners almost always spell it out for you pretty clearly in the separate calls when they are asking you any cross-over questions. So don’t worry about it, but do conduct a quick, light review of Evidence, for example, just to feel prepared for the possibility.

5) Civil Procedure – to be or not to be. It seems everyone is predicting this topic. I too feel it could come up and if it does here are a couple of areas that have been absent on the exam for some time: class actions and jurisdiction (subject matter and personal jurisdiction). Jurisdiction was tested far more recently than class actions. But, jurisdiction issues are probably the most commonly tested areas of Civil Procedure. And, if they really wanted to (the bar examiners, that is) they could test you on both class actions and jurisdictions (for example a class action brought in federal court based upon diversity of citenship – that is one way they could combine the two).

Please read/review my prior “predictions” (as I have not repeated it all here – so you should take it upon yourself to review this earlier post: February 2012 Essay “Predictions”/Essay Scenarios and please understand that no one can predict the bar exam.

I am still of the belief that you could see Criminal Law murder crossed with Criminal Procedure and/or Products Liability (keep in mind that Torts has made its way to the test quite a bit in the past four years and more than once strict liability has been tested, but, in the context of abnormally dangerous activities – so this one is a close one for me – I can completely see the bar testing products liability or as I mentioned before some miscellaneous torts area – including tort remedies or as a cross with professional responsibility).

Also given that there was only one (well, sort of two, non-mbe topics tested on day one – the Trust/Wills question) there obviously has to be some additional (at least I would think) non-mbe testing. Civil Procedure would fill that void, so too could Corporations or Community Property (remember that something usually repeats from the prior exam – anywhere from two to four topics – so far there have been no repeats. Therefore, based upon history, one would expect to see something from the list of topics tested on the July 2011 bar exam – see above list of what was tested on the July 2011 bar exam).

I know this is a lot. But, here is what I recommend that you do. Read over my initial “predictions” in the link above and see how that jives with what you saw on day one. Do not, I repeat DO NOT study only the topics on that list or anyone’s list. Instead, think about what you would be most afraid of seeing tomorrow morning and study that topic a bit extra. Then review all of the subjects (either in a condensed outline form – hopefully you have something like that to work from) and try to relax.

I have found that students generally know a lot more than they give themselves credit for. So be positive, and feel free to ask questions via email today – send questions or comments to: pass@barnonereview.com. I will do my best to return your questions. Also feel free to add any feedback you wish on this blog, especially if you think it would be helpful to someone else.

Come back this afternoon to see more tips on last minute preparation for Thursday’s essays, my thoughts on what might be on the essays and just some good old fashioned encouragement! In the mean time, I thought hearing what a few examinees had to say to me privately (no names are included here) might be helpful to you.

Here is what a few of your fellow examinees had to say:

“Ms. Duncanson, your essay predictions were spot on!!! I still don’t feel too good about my con law essay because it was tough, but I’m sure glad I had your blog to refer to when deciding which issues would merit some additional review!

The PT also, in my opinion, might as well have been a crossover PR/Business Associations (Partnerships) essay! I am now eager to learn what your outlook is for PR come Thursday because I recall having read in your blog that the way PR is tested has a lot to do with how extensively it was implicated, if at all, in PT A. Well, the gist of the PT concerned a proposed partnership between a lawyer and a non-lawyer to run a legal self-help business allowing customers who wish to represent themselves in legal matters (sort of like services provided by Legal Zoom). One major sub-issue involved in the receptionist’s duties and their potential ethical implications under the code. Unlike previous PTs in which the library contained case law, this PT had absolutely NO case law, but two sets of professional conduct code sections governing the prescribed/proscribed conducts in the fact scenario! It also included a “formal opinion” from the State Bar of Columbia as to the code of professional conduct.

Just thought I’d give you a brief background of the PT and also let you know that, so far, you are batting 100% in the essay predictions!

Thank you!”

And another email from one of your fellow examinees:

“I just wanted to say thank you for posting something about the essays today. It really helps to move on to tomorrow having some closure about what happened today. I’m sure I missed a bunch, but hearing that I was at least writing on the correct subject areas (and that someone else was equally tripped up by Question 2 and rushed with Question 3) gives me some peace of mind. So thank you for taking the time to provide that information, and for making it available to the public.

The one thing I will add is that the first call for the Trusts/Wills question (whether Dave, the unknown 25 yr old son, had a legal claim to the trust) specifically said answer according to CA law. I wasn’t quite sure what this was looking for, but I thought it would be worth mentioning since I know there’s a pattern of there being at least one specific CA law question.

Ok, on to tomorrow!! Thanks again :)”

Note: I added the underlining above to highlight the apparent California interrogatory (call of question). Please bear in mind, I have not seen the test. I have heard from many, many examinees and have put together what sounds like was tested. But, your focus should not be on day one any longer. However you feel about your performance on day one, you can still get through day two and three with flying colors. So much of this exam is about rising above how you feel, forging onward, pushing ahead. And, to that degree (regardless of what you might think about the bar exam, whether it is fair or not) if you were a client, you would want your lawyer to be able to do just that – forge ahead, work through whatever physical difficulties the day might present and simply do their absolute best on their behalf. So today and tomorrow – do the absolute best on YOUR behalf!

I have a story I want to share with you. The semester before I was to take the bar exam (back in 1994) my best friend was taking the bar exam in February of 1994. She felt so horribly about day one of the exam, was so certain that she had failed, that she packed her bags, got on the elevator to head down to the lobby of her hotel, check out and head home. Now what you need to know first is that this friend of mine was tough, not a baby, not weak and was smart. But, she had convinced herself that she had failed and that was simply that.

While on the elevator another bar taker asked her where she was going (it was pretty obvious she was leaving). She told him she was going home. He asked her why and she explained that she knew she had already failed the bar exam. (I think you may know where I am going with this by now). Well, the short version is that this fellow bar taker talked her into staying, told her, “Hey, at least you will know what the MBEs are like so that when you take it next time you will be better prepared”. So, she stayed for day two and she stayed for day three and guess what? She passed. She told me about how she was sure she had failed the test before she got her passing bar results, how she had planned to walk out, how she did feel like day three was a “little bit easier” but, that she still believed that she had missed too many issues and had not finished enough of the essays to pass.

So, the moral of the above, true story, is that you should never give up, not today, not tomorrow.

And one last thing, if you think an essay is hard or the MBEs are hard or the PT is/was hard . . . remember that you are not alone in thinking that way. It is hard. But, you can do it. So stay as positive as you can and hang in there.

I am packing up and saying goodbye to my Ontario students this afternoon. But, will be back online with more tips and areas to focus on by this afternoon.

All the best to you! And, thank you so much to all of you who have written to me personally – it is much appreciated and it really makes me feel like what I am trying to do here is worthwhile. So thank you. Also, feel free to comment on my blog, it can only help others.

I thought I would share this it is an email from an examinee that I received over the lunch hour – thank you, you know who you are :)

It sounds to me like this examinee had a pretty good handle on what was tested today. And yes it was pretty hard. So here is their message. Please feel free to add a comment below (it is a pretty small comment link, but, if you look hard enough, you should see it at the bottom of this post).

Here is what one bar examinee (whom I believe to be pretty astute) thought was covered today:

“Hi Lisa.

We were just tested on trusts/wills, conlaw, and evidence. Spot on as you “predicted”!

Conlaw was tough. It asked for a first amendment analysis of a city bus stop bulletin – where free flyers could be posted. An organization against immigration was prohibited from posting there because it failed to provide both English and Spanish language flyers as city required.

Where was the commerce clause and dormant commerce clause in this??!

Was public forum/time place manner restriction the proper analysis along with equal prot and due process?

What were they looking for???

Its possible there was also a commercial speech issue bc the orgs flyer promoted membership at $10/person…

Evidence involved 2 statements with various components – unavailable/dead decl, a note-writing to which an available decl testified but didn’t recall what was written on it… Medical statement, etc. it was a racehorse type f question bc there were a lot of subissues and no time.

You probably have this info from other students already but wanted to share in support of further predictions from you.

Thanks for your wisdom on your blog. I’ve been following it – both study wise for mbe’s and writing.